P L D 2015 Lahore 253 (PLP)

MUHAMMAD FARRUKH IRFAN KHAN, J.

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner calls in question the validity of order dated 25-9-2010 passed by the learned Addl. District Judge, Sargodha whereby the said court while accepting appeal of respondent No.1 against the order of the learned Guardian Judge, Sargodha dated 17-3-2010 allowed his application under section 25 of the Guardians and Wards Act, 1890 for custody of minor daughter Marriam Batool.

2. Facts of the case in brief are that respondent No.1 filed application for custody of his minor daughter Marriam Batool stating therein that the petitioner has contracted second marriage and it was settled between the parties that in such situation the petitioner would hand over to him the custody of minor; that the petitioner has also children from her second marriage as such the minor daughter is not being looked after properly by her; that he can provide best health facilities and education to the minor as compared to petitioner.

3. The petitioner contested the said petition while filing written reply. It was alleged that respondent No.1 had filed application for custody of minor in order to avoid payment of maintenance allowance to the minor; that she is looking after the minor properly and that she is getting proper education; that the respondent has also contracted second marriage out of which he has two children; that the welfare of minor lies in custody of the real mother.

4. Out of the divergent pleadings of the parties, learned Guardian Judge framed necessary issues. Parties adduced evidence qua their respective contentions. After hearing the arguments, learned Guardian Judge vide order dated 17-3-2010 dismissed the application of respondent No.1. Being aggrieved he filed appeal before the learned Appellate Court which was accepted vide impugned judgment dated 25-9-2010. Hence, this Constitutional petition.

5. Learned counsel for the petitioner submits that the learned Appellate Court erred in law while passing the impugned judgment; that the minor is living with the petitioner since her birth and has developed lot of love and affection with her; that respondent has also contracted second marriage and the minor cannot be left at the mercy of step mother; that the minor is being looked after properly and getting education; that respondent has no interest with the minor and he has filed application for her custody just to avoid payment of maintenance allowance; that the impugned judgment of the learned Appellate Court is based on surmises and conjectures; that the learned Guardian Judge had rightly dismissed the application of respondent for custody of the minor which has illegally been set-aside by the learned Appellate Court; that the minor girl is now at a stage where she needs company of her real mother; that the welfare of minor lies in her custody with the mother; that if the impugned judgment is allowed to remain intact it would adversely affect the upbringing of minor girl.

6. Conversely, learned counsel for respondent submits that the petitioner has contracted second marriage with a stranger, therefore, she has lost the right of Hizanat of minor daughter; that the minor is now at the age of growing up and also needs financial considerations; that respondent has sufficient source of income and can look after the minor properly as compared to the petitioner; that the learned Appellate Court has rightly passed the impugned judgment which needs no interference by this Court in its Constitutional jurisdiction.

7. I have heard the arguments advanced by the learned counsel for the parties and gone through the record.

8. Respondent No.1 himself while appearing in the witness box as AW1 during cross-examination admitted that he had contracted second marriage prior to divorcing the petitioner. He also admitted that he has two children out of his second marriage. He also admitted that a criminal case under section 302, P.P.C. was registered against him due to which he was discharged from Pakistan Army. He did not meet with the minor for the last 4/5 years. He also admitted that he did not pay maintenance to the minor except through court. He admitted that at the time of divorce it was settled that he will not demand the custody of minor.

9. Thus it is obvious from the record that the respondent/father neither made any effort for meeting with the minor prior to filing of the maintenance suit by the petitioner nor he paid any maintenance to her. He also admitted that at the time of divorce it was settled that he will not demand the custody of the minor. In the above back drop it can safely be presumed that the petitioner has no interest whatsoever with the welfare of the minor and he filed application for her custody in order to avoid his responsibility of maintenance allowance to her. It is also an admitted fact that respondent is an accused of a criminal case of heinous nature in which he also remained behind the bars, therefore, it is not appropriate to hand over the custody of minor girl to him. On the contrary, it is established that in the custody of the petitioner the minor is growing up properly and getting education in a private school. The minor girl is living with mother since her birth and is in such a part of her age which requires company of a real mother for her certain personal needs she cannot be left at the mercy of a step mother.

10. The learned Appellate Court while disturbing the custody of minor mainly relied upon the fact that the respondent is a man of means, whereas, the petitioner has no source of income and there is likelihood that in the near future step father would take his hands off to maintain the minor. This conclusion is based on assumptions and erroneous consideration. There is nothing available on record that the education or health of the minor is suffering due to financial inability of the petitioner to maintain her. Even otherwise, the respondent being the father of the minor is legally and morally bound to maintain her even if she resides with her mother, therefore, on the pretext of having limited resource a mother cannot be deprived of the custody of the minor. The Hon'ble Supreme Court of Pakistan in case reported as Mst. Razia Bibi v. Riaz Ahmad and another (2004 SCMR 821) almost in the identical circumstances has observed in the following terms:-- "It is to be noted for all concerned that poverty on the part of a lady is no ground to disentitle her from the custody of the minor. The petitioner lady has been looking after her minor son since his birth and maintaining him in a good environment. The father, who is under the law to maintain his child, has not provided any maintenance till date. The minor is living since his birth with his mother and welfare of the child, in the circumstances, also lies in favour of the petitioner. It is true that non-maintenance on the part of the father would not automatically disentitle him from the custody of his child but this would one of the circumstances for determining the welfare of the minor. This certainly shows the conduct of the respondent and in the case in hand, as already stated, right from the birth of the child the respondent has not maintained his son. The respondent, as stated by the learned counsel, has contracted second marriage and the mother, on the contrary, has not contracted second marriage. She is devoting her complete attention towards the upbringing of her minor son. Furthermore, it would be harsh at this juncture to hand over the custody of the minor to the respondent leaving him at the mercy of step mother in presence of his real mother who is properly maintaining him."

11. As far as the contention of respondent that the petitioner has contracted second marriage with a person who is stranger to the minor is concerned, firstly it is to be noted that respondent has also contracted second marriage out of which he has two children. Secondly, there is no evidence that the present husband of the petitioner is averse in keeping the minor in his home. As the petitioner is so strenuously contesting her right to retain her child it would have not been possible if she did not have the backing of her husband/ step father of the minor child.

12. Furthermore, it is settled principle of law that mere fact of remarriage of the mother would not ipso facto disentitle her from retaining custody of the minor children and handing them over to the father when it is not otherwise in the welfare of minor. Prime consideration for deciding the application of custody of minor is the welfare of minor and nothing else. The minor is living with the petitioner/real mother since her birth and thus has developed great love and affection with her and if at this stage, her custody is disturbed, it would adversely affect her upbringing. The petitioner is the real mother of the minor and there is no substitute of the real mother on the earth. Lap of mother is considered as cradle of God, therefore, in the presence of real mother it would be very harsh for the minor to be left at the mercy of the step mother, who has two children of her own from the respondent father.

13. For the above discussion, seeing from whatever angle welfare of the minor lies in custody of the petitioner particularly in view of the law laid down by the Hon'ble Supreme Court of Pakistan in the case reported as Firdaus Iqbal v. Shafaat Ali and others (2000 SCMR 838) that the rules of personal law would be subservient to the welfare of the minor.

14. For the reasons stated above, the learned Guardian Judge after due appreciation of the material available on record had rightly dismissed the application of respondent for custody of the minor which has illegally been allowed by the learned Appellate Court. Resultantly, this petition is allowed as a result whereof impugned judgment of the learned Appellate Court dated 25-9-2010 is set-aside and that of the learned Guardian Judge dated 17-3-2010 is restored. There is no order as to costs. AG/Z-13/L Petition allowed.